Date of Filing: 26-02-2016 Date of Final Order: 23/05/2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of CP Act, 1986 filed by Sukumar Sarkar and Smt. Shila Bhattacharjee (Chakraborty) against the Branch Manager, Pan Card Club Ltd. Cooch Behar and the Manager, Pan Card Club Ltd., Prabhadevi, Mumbai praying for refund of maturity amount of Rs.24,000/-and Rs.14,400/- respectively alongwith interest, Compensation of Rs. 15,000/- for mental pain, agony and unnecessary harassment, Rs.10,000/- for unfair trade practice and deficiency of service and Rs.5,000/- towards the cost of proceeding.
The case of the Complainants in short is that the Complainants purchased room nights under Divinne Holiday Scheme of Rs.18,000/- and Rs.10,800/- for a period of 5 years 6 months. The OPs accepted the Membership under holiday option of Pan Card Club Ltd. Divinne Holiday for utilizing 20 and 12 room nights for a tenure of 66 months commencing from 22.09.2009 and expiring on 22.03.15 and 27.07.2009 and expiring on 27.01.2015. Thereafter, the OPs issued certificates in favour of the Complainants being Folio No.COO/D-3881 and Folio No.COO/D-1280 and offered Group Insurance Policy. The dates of maturity of the said certificates were on 22.03.15 and on 27.01.15 respectively.
Further case of the Complainants is that after the maturity of the said certificates, the Complainants submitted the original documents in the Office of the OP No.1 at Cooch Behar through their Marketing Agent for getting maturity value. The Complainants went to the Office of the OP No.1 several times but they were informed that there was nothing to worry as they would make payment of maturity value within a very short time. Then, in the month of September and October, 2015, the Complainants received Multicity Account Payee Cheque being No.995420 dated 20.10.15 of Rs.24,000/- and Cheque No.969151 dated 15.09.15 of Rs.14,400/- payable at SBI, Commercial Branch, Dadar, Mumbai from the OP No.2. The Complainants presented the said cheques in their Banks and both the cheques were returned unpaid with an endorsement “Fund Insufficient”. It is also alleged by the Complainants that the Complainants orally contacted with the OP No.1 with the dis-honoured cheques and the OP No.1 requested the Complainants not to proceed on legal way. The Complainants further contacted with the OPs to get their maturity value and the OP No.1 received the original cheques from the Complainants for NEFT process but all efforts went in vain. Accordingly, the Complainants have filed the instant case against the OPs for proper relief.
The OPs, in order to contest this case, filed a w/v denying all material allegations contending inter-alia that the Complainants have no cause of action to file the instant case and this Forum has no jurisdiction to try this case.
Specific case of the OPs is that the Complainants purchased room nights Holiday Option in advance in the year 2009 for a period of 5 years 6 months on paying Rs.18,000/- and Rs.10,800/- and the OPs accepted the Membership of Pan Card Club’s Divinne Holiday Option for utilizing 20 and 12 room nights for a tenure of 66 months commencing from 22.09.2009 and expiring on 22.03.15 and 27.07.2009 and expiring on 27.01.2015. The OPs issued certificates in favour of the Complainants and also offered Group Insurance Policy. According to the OPs, the Complainants never utilized the room nights of the OPs purchased by them and they did not avail the services offered by the OPs. The customers never utilized the room nights and there is no question of deficiency of service on their part.
Further case of the OPs is that in terms of Clause No.10 (5) of the Membership Form, the Company have right to reject the application for surrender of room nights without assigning any reason and to change the terms and conditions.
Further case of the OPs is that this Forum has no territorial jurisdiction to entertain and try this case as the Complainants and OP No.2 entered into an agreement dated 22.09.2009 and 27.07.2009 and they agreed that in the event of any dispute between the parties, Mumbai Courts shall have exclusive jurisdiction to try this case.
On the basis of the aforesaid facts, the OPs prayed for dismissal of the case with cost.
In the light of the contention of the both parties, the following moot points are necessarily come up for consideration.
POINTS FOR CONSIDERATION
- Are the Complainants a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainants and are they liable in any way?
- Whether the Complainants are entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the documents along with evidence on affidavit of the parties. Heard the argument at a length as advance by the Ld. Advocate for the Complainant and the O.Ps.
Point No.1.
From averment of the plaint and its w/v, it is evident to us that the Complainants invested Rs.18,000/- and Rs.10,500/- under Pan Card Club’s Divinne Holiday Membership for 66 months and the OPs agreed to return against such investment. After expiry of the said investment, the OP No.1 and 2 issued Account Payee Cheques in favour of the Complainants but both the cheques were deposited to the Bank for encashment and the said cheques were bounced due to insufficient fund. The relation between the Complainants and the OPs is investor and service provider. The OPs agreed to return against such investment. As such, relation between the Complainants and the OPs is the consumer and service provider. Hence, this point is decided in favour of the Complainants.
Point No.2.
The cause of action in between the Complainants and the OPs took place at Cooch Behar. The Branch Office of the OPs is situated at Cooch Behar. As such, this Forum has territorial jurisdiction to try this case. The value claimed by the Complainants is far less than the prescribed limit. Hence, this Forum has pecuniary jurisdiction to entertain the present complaint.
Point No.3 & 4.
Both the points are taken up together for the convenience of discussion as well as the points are related with each other.
It is evident from the documents filed by the Complainants that the Complainants invested Rs.18,000/- and Rs.10,800/- under the OPs in the scheme of Pan Card Club’s Divinne Holiday Membership for 66 months. The dates of maturity were on 22.03.15 and 27.01.15 and to that effect, the OPs issued two certificates in favour of the Complainants being Folio No.COO/D-3881 and Folio No.COO/D-1280. After the maturity, the Complainants deposited the said certificates in the Office of the OPs and the OPs issued two Multicity Cheques being No.995420 dated 20.10.15 of Rs.24,000/- in favour of Sukumar Sarkar and Cheque No.969151 dated 15.09.15 of Rs.14,400/- in favour of Smt. Shila Bhattacharjee (Chakraborty) and both the cheques were bounced. Thereafter, the Complainants deposited the said bounced cheques in the Office of the OP No.1 for NEFT but all efforts were in vain. Therefore, from the oral evidence as well as documentary evidence, it is established that the Complainants invested Rs.18,000/- and Rs.10,800/- to the OPs and the OPs did not return the said money inspite of maturity. As such, the Complainants are entitled to get the return of the said investments as per certificates issued by the Pan Card Club Ltd.
Ld. Advocate for the OPs submitted that this Forum has no territorial jurisdiction to entertain the instant case as there was an agreement in between the Complainants and the OPs that in case of any dispute, Mumbai Courts shall have the jurisdiction to try the case. From the documents filed by the OPs, it is evident to us that this agreement shall be governed by the Indian laws subject to jurisdiction of Mumbai Courts only.
The cause of action took place at Cooch Behar. The Branch Office of the OP No.1 is situated at Cooch Behar. Therefore, this Forum has also jurisdiction to try this case. An agreement purporting to oust the jurisdiction of the Court is illegal and void on the ground of public policy. As per Section 28 of Indian Contract Act, an Agreement purporting to oust the jurisdiction of the courts is illegal and void on the ground of public policy. Every agreement which extinguishes the rights of any party or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.
The General Rule is that the parties cannot confer jurisdiction on a court which has no jurisdiction to try the suit and consequently, the agreement between the parties conferring exclusive jurisdiction on such court is of no avail. It cannot tie the hands of the court and denude it of the power to do justice. Where the ouster clause is calculated to operate as an engine of oppression and as means to defeat the ends of justice. The stipulation can be ignored by the excluded court which otherwise possesses jurisdiction. Therefore, we hold that there is no basis of such argument. This Forum has exclusive jurisdiction to try this case.
Ld. Advocate for the OPs further submitted that the Company reserves the right to reject such application for surrender of room nights without assigning any reason and/ or change the terms and conditions thereof in its sole discretion. In our view, induction of such clause amounts to unfair trade practice. Hence, both the points are decided in favour of the Complainants. The Complainants are entitled to get decree as prayed for.
Hence,
Ordered,
That the present Case No. CC/13/2016 be and the same is allowed on contest with the litigation cost of Rs.5,000/-.
The OPs are hereby directed to pay a sum of Rs.24,000/- to the Complainant No.1 and Rs.14,400/- to the Complainant No.2 alongwith 10% interest from the date of maturity of the deposited amount alongwith compensation of Rs.15,000/- for causing mental pain, agony and unnecessary harassment and Rs.10,000/- for unfair trade practice.
The OPs are directed to comply the above order jointly and/ or severally within 30 days from this date, failing which the OPs shall have to pay Rs.50/- for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
